| Cameroun, Cour suprême du cameroun, 24 avril 2008, 332/

Si l’article 13 du Traité OHADA reconnaît la compétence des juridictions nationales en instance et en appel pour l’application des actes uniformes, le même Traité prévoit en son article 15 que le pourvoi en cassation doit être porté devant la CCJA par les parties ou par les juridictions des Etats membres. C’est donc à bon droit que la Cour suprême du Cameroun, saisie d’un pourvoi en matière de procédure d’injonction de payer qui relève de l’AUPSRVE, se déclare matériellement incompétente et renvoie la cause devant la CCJA.
Article 13 Traité OHADA Article 15 Traité OHADA Article 9 AUPSRVE Article 10 AUPSRVE Article 16 AUPSRVE
(SUPREME COURT, judgment n°332/CC of 24 April 2008, Compagnie d’Assurances les provinces réunies and NZOFOU Samuel)
THE COURT After hearing the report read by the honourable Justice Andre BELOMBE, substituting Justice Mathias EPULI ALOH, unavoidably absent; Mindfull of the written submissions filed by the learned Procureur General at the Supreme Court, Mr. Martin RISSOUK a MOULONG; And having deliberated on the mater in accordance with the law; Mindfull of the memorandum of submissions in support of the appeal filed on 14 January; 2005 by Barrister SHU Walter FUH, Solicitor and Advocate of Vision Chambers, P.O BOX 322, Bamenda; Considering that by a notice and a lone ground of appal filed on 24 September, 2003 at the Registry of the North West Court of appeal, Bamenda, Barrister SHU Walter FUH, Solicitor and Advocate in Bamenda acting for and on behalf of Compagnie d’Assurances des provinces réeunies represented by WALAGO Vincent, has appealed to the Supreme Court against the judgement of the above Court of Appeal delivered on 28 August, 2003 in suit n°BCA/ISP/2002 between his client and NZOFOU Samuel; Considering that the instant case, the claim filed on 4 october, 2001 in the Court of First Instance, Ndop as suit n° NDM/SP9/2001 by Compagnie d’Assurances des provinces réunies represented by WALAGO Vincent, as creditor/applicant against NZOFOU Samuel as debtor/respondent, for a payment order in the sum of one million two hundred and nine thousand six hundred and seventy- three (1.209.676) FCFA francs; That on 17 october, 2001 the Court made a payment order nisi in the total sum of one million four hundred and nine thousand and six hundred and seventy three (1.409.673) francs inclusive of costs of two hundred thousand (200.000) francs which order was served on the debtor/respondent on 20 November, 2001;
Considering that upon the application of the creditor/applicant dated 6 December, 2001, the court issued a payment order absolute in the following terms: “it is hereby ordered: “1) That the debtor pays into the registry of this Court the liquidated debt of 1.209.673”; “2) That the debtor bears the cost of these proceeding fixed at 300.000 francs CFA”; Considering that in support of the appeal, learned counsel for appellant filed a lone ground of appeal as follows: “ARGUMENT SUPPORT OF GROUND ONE: “This ground reads thus: “The Court of Appeal erred in law in entertaining an appeal in the absence of an opposition within fifteen (15) days from notification of the injunction to pay in total violation of the mandatory provisions of Article 16 of the Uniform Act Organizing simplified Recovery Procedures and measures of Execution; My Lords, the appellants made the application for an injunction to pay with the necessary annextures attached on the 04/10/2001 as borne out at page 1-9 of the records of proceedings. The injunction to pay was ordered by the trial Magistrate on the 17/10/2001 as borne out at page 1 of the records. “The respondent was served with the injunction to pay giving him fifteen (15) days within which to file an opposition pursuant to articles 9 and 10 of the Uniform Act Organizing simplified Recovery Procedures and measures of Execution on the 20/11/2001 as borne out at page 12 of the records. The statutory period within which respondent had to file an opposition as per Article 19 of the above- cited Act expired on the 05/12/2001. The respondent did not file any opposition nor did he seek for an extension of the period to file the said opposition; “The appellants applied on the 06/12/2001 for the insertion of the executory clause on the ruling pursuant to article 16 of the Uniform Act Organizing simplified Recovery Procedures and measures of Execution as borne out at page 11 of the records. The executory clause clause was inserted on the ruling on 18/12/2001 as borne out at page 13 of the records. The ruling was stamp dutied on 20/12/2001 as seen on pages 14-15 of the records. The respondent filed an appeal dated the 8th day February 2002 on the 20/12/2002 as borne out at page 16 of the records. This was two months after the final order has been issued and execution comm. “My Lords, paragraph two of article 16 of the Uniform Act Organizing simplified Recovery Procedures and measures of Execution states thus: “Such insertion produces the effects of a decision after trial and shall not be liable to appeal”; “ We submit that the insertion of the executory clause on the ruling at page 13 of th records made it final and was not liable to appeal. The respondent’s appeal against the ruling at page 16 of the records was therefore baseless pursuant to Article 16 of the above- cited law. The North West Court of Appeal was therefore supposed to “entertain the appeal and dismiss same as being contrary to the Mandatory Provisions of Article 16 of this law is not optional for, the North West Court of Appeal to have exercised a discretion thereon, yet the North West Court of Appeal upheld the respondent’s appeal and awarded costs of 150.000 francs CFA against the appellants herein in favour of the respondent as borne out in the judgment at pages 33-39 of the record of proceedings; “In the upshot, we urge your Lordships, to uphold this ground of appeal and with it the entire appeal and to enter the judgment in favour of the appellants with the substantial
costs against the respondent in favour of the appellant” Considering that section 13 of the OHADA Treaty provides that all suits related to the application of the Uniform Acts shall be heard and determined at first instance and on appeal by the national courts of member States; That section 15 of the same treaty provides that final appeals in such matter shall be submitted to the Common Court of Justice and Arbitration by any of the parties or transferred there by the courts of Member State concerned; Considering that it follows all the foregoing that though the suit was filed ostensibly under the provisions of Law n°89/021 of 29 December, 1989 laying down a simplified procedure for the recovery of civil and commercial debts, as amended by Law N°96/10 of 5 August, 1996, yet this matter falls squarely within the ambit of the OHADA Uniform Act of 10 April 1998 laying down simplified Recovery Procedures and Enforcement Procedures; That the Supreme Court of Cameroon thus lacks jurisdiction ratione material to entertain this appeal; That consequently, in accordance with section 15 of the OHADA Treaty aforecited this matter should be transferred to the Common Court of Justice and arbitration;
UPON THESE GROUNDS Transfers this matter to the Common Court of Justice and Arbitration of Abidjan; Reserves the costs; (…)